United States v. Cervantes

United States District Court, N.D. Indiana, South Bend Division

April 5, 2018

UNITED STATES OF AMERICAv.AURELIO CERVANTES

OPINION AND ORDER

JON E.
DEGUILIO JUDGE

The
superseding indictment in this case [DE 58-1] charged
Defendant Aurelio Cervantes with fifteen counts related to
his participation in an illegal drug trafficking
organization. Mr. Cervantes pled guilty with the benefit of a
plea agreement to one count of possession with intent to
distribute and the distribution of cocaine, in violation of
21 U.S.C. §§ 841(a) and (b). [DE 135-1] This Court
accepted Mr. Cervantes' plea of guilty, accepted his plea
agreement, and found him guilty on July 14, 2016. [DE 154] On
December 20, 2016, the Court sentenced him to 168 months
imprisonment, to be followed by three years of supervised
release. [DE 238 at 2-3]

Now
proceeding pro se, Mr. Cervantes filed a motion
under 28 U.S.C. § 2255, seeking to set aside his
sentence on the basis that he received ineffective assistance
of counsel at sentencing. [DE 290] Pursuant to Rule 4(b) of
the Rules Governing Section 2255 Proceedings for the United
States District Courts, “If it plainly appears from the
motion, any attached exhibits, and the record of prior
proceedings that the moving party is not entitled to relief,
the judge must dismiss the motion . . . .” Here, it
plainly appears from the motion and the record of prior
proceedings that Mr. Cervantes is not entitled to relief on
his claim, so the Court dismisses his motion.

DISCUSSION

To
prevail on a claim of ineffective assistance of counsel, a
defendant must show: (1) that his counsel's performance
was deficient, meaning that it fell below an objective
standard of reasonableness; and (2) that he was prejudiced by
the deficiencies in his counsel's performance, meaning
that there is a reasonable probability that the results of
his sentencing hearing would have been different with
effective representation. Strickland v. Washington,
466 U.S. 687 (1984); Fuller v. United States, 398
F.3d 644, 650 (7th Cir. 2005).

A.
Conspiracy

Mr.
Cervantes largely argues that his attorney, Mr. Kevin Milner,
was ineffective for failing to object to the Presentence
Report's and this Court's multiple references to what
he describes as “the uncharged conspiracy
offense.” [DE 290-1 at 7-14] Mr. Cervantes repeatedly
contends that he was never charged with a conspiracy offense,
but the superseding indictment indeed charged him with
conspiracy to distribute cocaine [DE 58-1 at 1-2], so this is
obviously inaccurate. Mr. Cervantes' argument, however,
is better characterized as pinned to his belief that he can
only be held accountable at sentencing for the single
instance of possession underlying his plea agreement, and not
for anything else. However, the sentencing Guidelines require
the Court to consider as relevant conduct “all acts and
omissions … that were part of the same course of
conduct or common scheme or plan as the offense of
conviction.” U.S.S.G. § 1B1.3(a)(2). Here,
relevant conduct pertaining to Mr. Cervantes' conviction
for possession with intent to distribute plainly encompasses
the larger conspiracy of which the single convicted offense
was a part.

B.
Aggravating Role - Section 3B1.1(a)

Next,
Mr. Cervantes argues that he received ineffective assistance
of counsel because Mr. Milner neglected to object to the
application of an enhancement for Mr. Cervantes's role as
an organizer or leader under U.S.S.G. § 3B1.1(a). [DE
290-1 at 2] First, to the extent Mr. Cervantes contends that
his attorney did not object at all, the Court notes that Mr.
Milner objected to the applicability of this guidelines
provision, albeit on the grounds that Mr. Cervantes occupied
a middleman role in the conspiracy rather than that of a
leader or organizer. [DE 191; 262] In so objecting, Mr.
Milner advocated for a two-level increase under §
3B1.1(c) rather than the four-level increase Mr. Cervantes
eventually received under § 3B1.1(a). The Court
overruled this objection based on the facts indicating that
Mr. Cervantes engaged in a much broader role than that of a
middleman. [DE 262 at 15:9-20:9] For example, Mr. Cervantes
made organizational decisions affecting the drug distribution
scheme, compensated drug couriers, and dealt directly with a
Mexican drug cartel to obtain wholesale quantities of
cocaine. See Id. Furthermore, nothing suggested that
he answered to anyone other than the cartel that supplied
him. Id. at 17:25-18:2. In this regard, Mr.
Cervantes cannot satisfy the first Strickland
requirement; his attorney indeed objected to the enhancement
but was overruled based on the Court's evaluation of the
facts.

But Mr.
Cervantes appears to be making more of a factual argument
along these lines: that he did not supervise or even know
anyone else involved in this conspiracy; that he told his
attorney this; and, nevertheless his attorney failed to
investigate or object to the enhancement on these specific
grounds. [DE 290-1 at 2] However, even if that were the case,
the Court's analysis for applying the enhancement
included factual findings that Mr. Cervantes personally knew
and directly dealt with his co-conspirators. [DE 262 at
15:9-20:9] Furthermore, the Court expressly stated that it
would have issued the same sentence even if it had sustained
Mr. Milner's objection to the application of §
3B1.1(a). [DE 262 at 32:14-21] Therefore, Mr. Cervantes
cannot demonstrate prejudice under Strickland here
simply because of Mr. Milner's failure to object on these
specific grounds.

To the
extent Mr. Cervantes attempts to argue that no conspiracy
existed at all based on his claims that he does not know any
of his co-defendants, he admitted in his plea agreement that
he was “involved with a group of people in Indiana,
Texas, and Ohio in the distribution of cocaine” during
the time period alleged. [DE 135-1 ¶ 9(b)]

C.
Miscellaneous Arguments

Mr.
Cervantes raises a few smaller arguments, but they all lack
merit. For example, he argues that his attorney failed to
properly investigate his case and provide him access to
exculpatory evidence contained in discovery. [DE 290-1 at
4-5] However, he does not indicate what information
Mr. Milner would have uncovered through further
investigation, nor what information contained in discovery
would have been exculpatory as to him. Therefore, he cannot
demonstrate how his attorney's purported
failures here impacted his sentence. Because of this, Mr.
Cervantes has failed to demonstrate the requisite prejudice
under Strickland.[1]

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Mr.
Cervantes also cites broadly to Alleyne v. United
States, which holds that any fact that increases a
mandatory minimum sentence must be found by a jury, 570 U.S.
99, 103-04 (2013), but that case applies to mandatory
sentencing provisions in statute, not to advisory guidelines
calculations. He further argues that his attorney&#39;s
failure to summon his co-defendants and some of the
government&#39;s witnesses at sentencing resulted in a
violation of his Sixth Amendment confrontation rights [DE
290-1 at 5-6], and suggests that their testimony would have
proven that they did not know him, let alone take any
directions from him. Id. at 2. However, the
confrontation clause does not apply at sentencing, during
which the Court &ldquo;may consider relevant information
without regard to its admissibility under the rules of
evidence applicable at trial, provided that the information
has sufficient indicia of reliability to support its probable
accuracy.&rdquo; See United States v. Harmon, 721
F.3d 877, 888 (7th Cir. 2013) (citing U.S.S.G. §
6A1.3(a)). And ...

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